Judgement SAIKIA, CJ. :- The Senapati District of Manipur, hereinafter referred to as the the district, having been declared as a disturbed area under S.3 of the Armed Forces (Special Powers) Act, 1958, hereinafter referred to as the Act, alleging infringement of the fundamental rights guaranteed under Arts.14, 19(1), 21, 22, 23, 25 as well as other constitutional and legal rights of the residents of the district, after some members of the National Socialist Council of Nagaland attacked the Assam Rifles Post at Oinam village and made off with some arms and ammunitions, and in course of the subsequent combing operations carried out by the armed forces, taking over the administration of the district in purported exercise of powers given under the Act, the Naga Peoples Movement for Human Rights (NPMHR) as petitioner in this petition under Art.226 of the Constitution of India seeks, inter alia, a declaration that S.6 of the Act is unconstitutional and void; a writ of certiorari quashing the notification declaring the district as a disturbed area; an order or direction commanding the respondents to pay exemplary damages to the persons affected in person or properties; to forward the papers of this case accompanied by a writ of mandamus to the Superintendent of Police of the district; to treat those as information of cognizable offences and to commence investigation as prescribed under the law; and lastly, to formulate guidelines to ensure the presence of Civil authorities at the time of combing operations and to exercise check against abuse of power. The petitioner, besides impleading the Union of India through the Secretary, Ministry of Home and the Secretary, Ministry of Defence and the State of Manipur, has also impleaded the Governor of Manipur, Raj Bhawan, Imphal as respondent 3. 2. By our order dt. 7-10-87 notices were issued to the other respondents but not to respondent No. 3. While taking this petition to day for admission Mr. Y. Imo Singh, learned Advocate General, Manipur, takes objection to the impleading of the Governor of Manipur submitting that in view of the provisions in Art.361 of the Constitution of India this petition cannot be admitted unless the Governors name is deleted, and even assuming that it is otherwise admissible. While taking this petition to day for admission Mr. Y. Imo Singh, learned Advocate General, Manipur, takes objection to the impleading of the Governor of Manipur submitting that in view of the provisions in Art.361 of the Constitution of India this petition cannot be admitted unless the Governors name is deleted, and even assuming that it is otherwise admissible. Smt. N. Haksar, the learned counsel for the petitioner answers that Governor of Manipur is a necessary party to the petition in view of his exercise of powers under S.3 of the Act declaring the district as disturbed area and his failure to review or withdraw the order resulting in commission of atrocities on persons and properties of Oinam in the name of counter-insurgency. Referring us to the provision of S.3 of the Act prior to and after its amendment, and to the decisions in Nizam v. State, AIR 1955 Hyd 241, paras 14, 15 and 16 (246); State v. K.M.Nanavati, AIR 1960 Bom 502 (FB), para 6 (505); G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330, para 9 (333); State of West Bengal v. S.N. Bose, AIR 1964 Cal 184 , para 26 (189) and K.A. Mathialagan v. Governor of Tamil Nadu, AIR 1973 Mad 198 (FB), para 26 (218-219) counsel submits that at least an affidavit from the Governor would be necessary for proper adjudication of the petition and hence under the peculiar circumstances of the petition impleading of the Governor is proper. Counsel, however, fairly submits that if complete redress of the grievances made out in the petition can be given by this Court even after deleting the name of the Governor the petitioner would have no objection as it has no grievance against the Governor personally. 3. The question therefore is whether the name of the Governor should be deleted and, if so, with what effect? S.3 of the Act prior to its substitution in 1972 read : "3. 3. The question therefore is whether the name of the Governor should be deleted and, if so, with what effect? S.3 of the Act prior to its substitution in 1972 read : "3. Power to declare areas to be disturbed areas : If the Governor of Assam or the Chief Commissioner of Manipur is of the opinion that the whole or any part of the State of Assam or the Union Territory of Manipur, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, he may, by Notification in the Official Gazette, declare the whole or any part of the State or Union Territory to be a disturbed area." By S.4 of the Armed Forces (Assam and Manipur) Special Powers (Amendment) Act, 1972 (Act No. 7 of 1972) for S.3 of the principal Act, the following Section was substituted, namely "3. If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area". Thus the opinion of and declaration by, the Governor are pre conditions under the Section, and impleading would otherwise be proper. However, Art.361 of the Constitution provides : "361. Protection of President and Governors. (1) The President, or the Governor of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Protection of President and Governors. (1) The President, or the Governor of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Provided that the conduct of the President may be brought under review by any Court, Tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Art.61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State. (2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any Court during his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor of a State shall issue from any Court during his term of office. (4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action thereof, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims." 4. In Nizam (AIR 1955 Hyd 241) (supra) the historical background of the principle of immunity as embodied in Art.361 of the Constitution has been given with reference to England and America showing the differences. We are all aware that under the English common law no proceeding, civil or criminal, was maintainable against the sovereign in person, for, it was said, the courts, being the Kings own, could have no jurisdiction over him. We are all aware that under the English common law no proceeding, civil or criminal, was maintainable against the sovereign in person, for, it was said, the courts, being the Kings own, could have no jurisdiction over him. The only methods by which, before the passing of the Crown Proceedings Act, 1947, redress might be sought against the Crown in the courts were by way of petition of right, which could be filed on the grant of the royal fiat; by suits against the Attorney-General for a declaration; or by actions against Ministers and Government departments which had been incorporated or declared liable to suit by statute. The Crown enjoyed numerous immunities and privileges, in particular immunity from liability for damages for torts committed by Crown servants. However, the Crown Proceedings Act, 1947 abolished two ancient and fundamental rules of English Constitutional Law. The first, the procedure of petition of right which was based on the principle that King could not be impleaded in his own courts; and the second, that the Crown could not be proceeded against at all in tort, which was due to the same principle coupled with the doctrine that" the King could do no wrong". The inconveniences of system of fiat and petition of right was pointed out in Adams v. Naylor, 1946 AC 543 and Royster v. Cavey, (1947) 1 KB 204. Consequently the Crown Proceedings Act, 1947 was passed to make the Crown liable in tort in the same way as a private person, and to reform the rules of procedure governing civil litigation by and against the Crown, especially by allowing an action without a fiat where the petition of right previously lay. The Act adopted tile principle of treating the State (or "the Crown") for the purpose of litigation as nearly as possible in the same way as a private citizen, thus bringing the law nearer the conception of the Rule of law as has been observed by O. Hood Phillips in his Constitutional and Administrative Law, Sixth Edition, page 639. The above trend would be indicative of the need for doing so in our country also. Under the English Law colonial Governor did not enjoy any immunity from criminal or civil liability. The above trend would be indicative of the need for doing so in our country also. Under the English Law colonial Governor did not enjoy any immunity from criminal or civil liability. However, it was defence if he could prove that an act which was otherwise tortious was done by him within the authority of the Crown and that his commission has given him power to exercise that authority. A Governor was liable under contract in respect of his obligations entered into in a private capacity, but he was not personally liable in damages for breach of a contract entered into on behalf of the Government service. A Governor might be sued in respect of a civil liability (contract or tort) either in the courts of his colony or in England, but if the action was brought in England. There was no bar for criminal prosecution of a Governor in his colony but instances were rare. The immunity provided to the Governors in the Indian Constitution appears to be greater than that of the colonial Governors under the English law. 5. Corresponding to the notion of Crown immunities in England the notion of Presidential immunities developed in the United States of America. As C. Herman Pritchett in the American Constitution points out, President Nixons involvement in the Watergate cover up raised legal issues concerning executing privilege and presidential immunities. United States v. Nixon, (1974) 94 Sup Ct 3090, was initiated by Jaworski in an attempt to get tape recordings bf conversations between the President and his associates to be used as evidence in the prosecutions of those associates. The Supreme Court extended the subpoena and the President after refusing to commit himself in advance, did obey. Subpoenas were upheld against Nixon in two cases. The principal Precedent was Chief Justice Marshalls subpoena to President Jefferson in the 1807 treason trial of Aeron Burr. While Marshalls contention was that the President was not immune from subpoena, there was some confusion as the subpoena was not actually enforced. United States v. Burr, (1807) 25 Fed Cas 187 wherein it was concluded that the legitimate needs of the judicial process may outweigh presidential privilege and it was necessary to resolve those competing interests in a manner that preserved the essential functions of each branch. United States v. Burr, (1807) 25 Fed Cas 187 wherein it was concluded that the legitimate needs of the judicial process may outweigh presidential privilege and it was necessary to resolve those competing interests in a manner that preserved the essential functions of each branch. In Mississippi v. Johnson, 4 Wall 475 : 18 L Ed 437 (1867) the Supreme Court declined to issue an injunction against the President pointing out that if he refused obedience, the Court would be "without power to enforce its process". When the two subpoenas were issued to President Nixon and Judge Sirica subpoenaed Nixons tapes for use of the Watergate grand jury, he considered it immaterial that the Court had not the physical power to enforce its order to the President. He simply relied on "the good faith of the executive branch" (United States v. Nixon (supra). 6. In S.N. Bose ( AIR 1964 Cal 184 ) (supra) interpreting Art.361(1), it was held that the Governor could not be made a party in any proceeding in Court, inter alia, in a case where his decision could have been questioned on grounds available to a citizen against other authorities justifying the quashing of any order. A citizen was not without redress when his complaint related to the performance of the powers and duties of the office of the Governor, even though he could not implead the Governor as a party, it would be enough if he impleaded the State Government and asked the appropriate relief and the party could be given relief when the State Government was before the Court. 7. While the English law may be kept in the background, Art.361 of the Constitution leaves no room for doubt about the nature and scope of immunity of the Governor. It gives personal immunity from legal action to the Heads of the States for their official acts including proceeding for contempt of Court. The provision that the President or the Governor shall not be answerable to any Court means that no Court can compel the President or the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear from exercising his power or performing his duties. He is not amenable to the writs or directions issued by any Court. He is not amenable to the writs or directions issued by any Court. Besides, the protection offered by the Article extends not only to the official acts and omission but also to acts and omission which can be said to be incidental to the exercise of the powers of performance of the duties of the Governor as was held in Vijai v. Ajit Prasad, AIR 1966 All 305 (308). The words purporting to be done are of a very wide implication and even though the act done is outside or in contravention of the Constitution, it comes within the protection of Art.361 if the act is professed to be done in pursuance of the Constitution and it is not established that it was done dishonestly or in bad faith, i.e., out of improper motive. Under the second proviso the action lies against the Government and the Court may scrutinise the action in order to give relief to the individual against the Government. The personal immunity of the Head of the State does not bar any suit being brought or any writ being issued against the Government, where the suit or proceedings would have been otherwise maintainable against the Government and to such a suit or proceeding, the Governor is not a necessary party as was held in Nanavati ( AIR 1960 Bom 502 ) (FB) (supra) and S.N.Bose ( AIR 1964 Cal 184 ) (supra). There is no bar to the judicial writs being issued against the Government in such cases provided other conditions for their issuance are present. In other words, though a mandamus would not issue against the Governor, there is no bar to such writ being issued against the Government concerned or against an officer thereof as was held in Cooverjee v. Excise Commr., AIR 1954 SC 220 ; Guruswamy v. State of Mysore, AIR 1954 SC 592 ; State of Bombay v. Krishnan, AIR 1960 SC 1223 ; Pratap Singh v. State of Punjab, AIR 1964 SC 72 (83). 8. Section 3 of the Act, as substituted in 1972, leaves no doubt that the power exercised thereunder by the Governor is a part of the sovereign Governmental functions of the State. The same power can be exercised by the Central Government as well. The notification is to be in the Official Gazette. 8. Section 3 of the Act, as substituted in 1972, leaves no doubt that the power exercised thereunder by the Governor is a part of the sovereign Governmental functions of the State. The same power can be exercised by the Central Government as well. The notification is to be in the Official Gazette. It is a function performed in official capacity of the Governor and not in personal capacity. S.3(60)(c) of the General Clauses Act says the "State Government", as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government. 9. Mr. Singh, referring to above S.3(60)(c) submits that insofar as the State of Manipur is concerned the Governor and the State Government are synonymous terms. This interpretation is tenable. Art.367(1) provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modification that may be made therein under Art.372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature. Mr. Singh also submits that even without impleading the Governor the Notification may be liable to be quashed; inasmuch as when the Governor issues any notification under a special Act it would be an order of the State Government. Counsel elaborates that when the Governor exercises a power in his discretion under the Constitution he does not act with the aid and advice of the Council of Ministers; but when he exercises some other power under some other Act, which is not in exercise of his discretionary powers, he always acts with the aid and advice of Council of Ministers; and that in this particular case while exercising power under S.3 of the Act for declaring the Senapati District of Manipur to be a disturbed area, the Governor of Manipur acted with the aid and advice of the Council of Ministers and, as such, there is no reason, according to the learned Advocate General, why the notification cannot be scrutinised and, if found bad, quashed, without impleading the Governor of Manipur when the State of Manipur is also a party in the petition. 10. Thus, we find three kinds of acts that may be performed by the Governor in exercise of his powers. 10. Thus, we find three kinds of acts that may be performed by the Governor in exercise of his powers. First, the powers exercised or acts performed with the aid and advice of the Council of Ministers. Second, those powers exercised or acts performed in exercise of his discretion. Third, those which he may exercise being the ex-officio head of any institution, e.g., the University of which the Governor is the Chancellor. It has been held in a number of cases that when the Governor acts as the ex-officio head of such an institution he cannot claim immunity under Art.361 because h exercises a special power and he is not required to act with the aid and advice of the Council of Ministers. 11. It has not been controverted before us that while exercising powers under S.3 of the Act in the matter of declaration of Senapati District to be a disturbed area, the Governor acted with the aid and advice of the Council of Ministers, as stated by the learned Advocate General, Manipur. We find that the State of Manipur as well as the Union of India are already parties to the petition. Under the above circumstances it cannot be said that the Governor shall not be protected by immunity available to him under Art.361 of the Constitution of India. 12. We have also considered that the question of immunity is entirely different from the question of being a necessary party. When the immunity is available even a necessary party cannot be impleaded. But when one is not a necessary party even when there is no immunity, his name may not be impleaded as one of the party respondents. In the instant case the question arises as to whether in the absence of the Governor the justification or the basic data, which resulted in the satisfaction or opinion of the Governor for declaration of Senapati District as a disturbed area will be available for scrutiny of the Court. We find no reason why the State Government would not be able to provide the same. In view of the statements made by the learned Advocate General we do not find that those materials will not be made available to the Court for scrutiny, if required. We find no reason why the State Government would not be able to provide the same. In view of the statements made by the learned Advocate General we do not find that those materials will not be made available to the Court for scrutiny, if required. Insofar as satisfaction and opinion of the Governor are concerned, those, of course, cannot be justified or explained by the State; inasmuch as, the satisfaction of the Governor in this regard may not be reviewable by the Court. Be that as it may, that is not a question to be decided at this stage. 13. For the foregoing reasons it is ordered that the name of the Governor of Manipur, respondent 3, be deleted from the petition and accordingly it stands amended. It will now be taken up for admission. Order accordingly.